Olazewski v Circuit Court in Katowice and Regional Court in Bialystok Poland
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE DAVIS |
| Judgment Date | 01 February 2011 |
| Neutral Citation | [2011] EWHC 186 (Admin) |
| Date | 01 February 2011 |
| Docket Number | CO/10751/2010 |
| Court | Queen's Bench Division (Administrative Court) |
[2011] EWHC 186 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: MR JUSTICE DAVIS
CO/10751/2010
Miss B Kopel (instructed by Henrys Solicitors) appeared on behalf of the Appellant
Miss A Nice (instructed by CPS) appeared on behalf of the Respondent
: This is an appeal brought by Mr Robert Olszewski pursuant to the provisions of section 26 of the Extradition Act 2003 against an order of District Judge Riddle made on 7th October 2010 whereby the District Judge ordered the extradition of the appellant to Poland.
The background facts can be relatively briefly stated. The appellant is a citizen of Poland. The offences in question and by reference to which his extradition was sought took place in around 2001. In the event the appellant left Poland in 2002 before any charges had been brought against him. In a witness statement put in by the appellant and which was before the District Judge, and indeed by reference to which the appellant gave oral evidence before the District Judge, the appellant said that he left in 2002, essentially because he was fearful of retribution and violence from certain criminal persons connected, he says, with the Mafia. He says that he did not in any way leave Poland in 2002 to avoid being prosecuted in respect of the current matters. It was part of his evidence contained in his witness statement (in respect of which part of his evidence I was told he was not cross-examined before the District Judge) that he had been interviewed with regard to these matters by the police in 2001 but thereafter so far as he was concerned no further steps had been taken.
The warrants themselves were issued and certified in the course of 2010. There are two warrants. The first, emanating from the relevant court in Poland, starts off, after reciting that it is of course a European Arrest Warrant:
"This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."
Thereafter in box (a) details are given. In box (b) there is specified the decision on which the warrant was based, that specifying it as an arrest warrant or judicial decision having the same effect, that was by judicial decision of the District Court in Katowice of 29th December 2005. It states with regard to whether there was an enforceable judgment that it was "NOT APPLICABLE". Indications of the length of sentence then were given by reference to the maxima are there set out. Then under box (d) it was said with regard to a decision rendered in absentia, that was "NOT APPLICABLE". Then with regard to the other matter, namely "The person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia but has the following legal guarantees after surrender (such guarantees can be given in advance)", and the answer was this, as translated:
"THE ACCUSED PERSON WAS NOT PRESENT WHEN THE COURT IMPOSED PRELIMINARY DETENTION ON HIM BECAUSE HE WAS IN HIDING FROM THE POLISH PROSECUTION AGENCIES. AFTER SURRENDER, HE SHALL HAVE THE RIGHT TO APPEAL AGAINST THE DECISION TO THE COURT OF HIGHER INSTANCE".
And then with regard to the typed-in proforma question specifying legal guarantees no answer was given to that.
Details were then given of the offences in respect of which the warrant was issued. First, it was said that from March until the end of the year 2001, in Warsaw and other towns, he led an armed criminal organisation, referred to as a particular named group, the purposes of which was to commit offences against property. Second, it is said that he committed a continuous offence in combination with the same criminal group relating to an amount of amphetamines. Third, it is said that from March until June 2002, in Belchatow, acting jointly in concert with other persons for the purpose of gaining material benefit in a criminal organisation (again referring to the same group) and using various methods, he attempted to obtain property in a significantly large amount of money.
So far as the second arrest warrant was concerned, that also started with the words:
"This warrant has been issued by a competent judicial authority. I request that the person mentioned below be arrested and surrendered for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order."
Then details are again given in table (a). In (b), with regard to the decision on which the warrant was based, it is said that it was based on an arrest warrant or judicial decision having the same effect, the order on preliminary detention being dated 19th March 2010 and issued by the District Court in Bialystok. It then referred to whether the judicial decision involves an Enforceable judgment, stating: "not applicable". Then the indications on the length of sentence were answered by what the prospective maximum length might be, and with regard to length of custodial sentence or detention order imposed it was said "not applicable", as likewise was the answer to the question regarding the remaining sentence to be served. Again, the matters relating to decisions rendered in absentia were set out and so far as the legal guarantees question was concerned that was answered "not applicable". In terms of the details of the matter, the answer, as translated, was this "Robert Olszewski is under suspicion that…": and then it sets out in the period of time from April 10th 2001 to April 30th 2001 in various places, certain alleged matters which, in summary, would seem to involve some kind of insurance fraud involving an amount of 17,000 Polish zlotys.
It may be noted that the answer to the formal question in the first European Arrest Warrant stated, as translated, that the appellant was "hiding". However, before the District Judge it was expressly conceded for the purposes of that hearing that the appellant was not barred from arguing passage of time as a fugitive. It was said at that stage that the respondent's lawyers had only very recently received notification of the nature of the defence case and the requesting state had not had time to confirm the statements in the warrant to the effect that the appellant was a fugitive.
In the event, after the hearing before the District Judge it appears that further attempts were made on behalf of the requesting state to find out more details about this finding that the appellant was "hiding". According to a witness statement made by Miss Tyler at the end of January 2011 several requests were made to the Polish authorities to provide the details. Ultimately an answer was provided by a document dated 19th January 2011. In the event that document, which I initially read de bene esse, did not really seek to justify an assertion that the appellant was a fugitive or was "hiding" in the sense that he had left Poland deliberately to evade prosecution for these matters, but in the event sought to comment on the amount of intervening delay that had occurred.
Miss Kopel, on behalf of the appellant, objected to the admission of this evidence, saying that it was too late.
Having considered the matter, I decided that I would not grant leave for this document to be put in. It may well be that before the District Judge the requesting state had only had relatively short notice —although I was told that it was some weeks —of what the defence was going to be, although I have to say that upon the footing the matter was going to be opposed it did not take too much imagination to see that an assertion of delay, injustice and oppression and so on was likely to be raised. But more than that, many, many weeks have elapsed since the decision of the District Judge. The answer from Poland only came in on 19th or 20th January 2011. It then took some days after that for the witness statement of Miss Tyler to be prepared and served. Miss Kopel told me she only received this information a day or so before this hearing before me. Taking all these matters together, I declined to grant leave to allow this extra material to be adduced as evidence.
This court well understands the difficulties that can be occasioned in requesting information from requesting states, and indeed it also adds to the delay that translations and the like are needed once the relevant authorities have processed the information. It must be borne in mind, however, that extradition matters do need to be dealt with as a matter of expedition and it is important that materials relevant to an extradition case are produced promptly. If they cannot be produced promptly at the relevant time then they should be produced promptly if they are sought to be relied upon at a later hearing: leave of course being necessary for such purpose.
The District Judge in his ruling dealt with the matter both fully and carefully. He indicated that he was satisfied that what might be called all formal matters were fulfilled. He dealt fully with the issue of passage of time. It was noted that before him, as indeed on this appeal, both limbs of section 14 of the Act were raised: that is to say whether it would be unjust for the appellant to be...
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